Tuesday, September 27, 2011

Second Circuit's decision holding that corporations are not liable under the Alien Tort Statute is not among those granted review by the Supreme Court... YET

Earlier today I reported that the Supreme Court had denied review in two important cases. I was wrong. The Court did not grant review, but it has not yet denied it. Here is my corrected post:

In a very surprising move (at least to me), the Supreme Court announced today the list of cases it will review out of the first conference of the year and it does not include the decision of the Second Circuit in Kiobel v Royal Dutch Petroleum. This is the case in which the court held that corporations can't be held liable for damages for violating the law of nations under the Alien Tort Act. That opinion is available here. The Supreme Court also decided not to review Bowoto v. Chevron (available here), which raised the same issue under the Torture Victims Protection Act.

I thought the Supreme Court would grant review on both cases not only because they involve extremely interesting and important issues but because there is a clear split among circuit courts on the question. The Court of Appeals for the 11th Circuit and the District of Columbia Circuit have rejected the reasoning of the court in Kiobel. The more recent of these cases are Doe v Exxon Corporation (from the DC Circuit) (available here) and Flomo v. Firestone (7th Circuit) (available here).

It is still possible that the Court will eventually agree to review these cases, though. The Court announced the cases it will review; it did not announce the petitions it has (or will) deny. The list of cases that have been denied will not be released until next Monday.

For more information on this topic take a look at my previous posts on the subject, here, which has links to even more information including all the relevant documents filed in the Kiobel case before the Supreme Court. Also check out my section on the Alien Torts Statute here.

For more information on these and other cases under review by the Supreme Court go to the Supreme Court blog here and here.

UPDATE (Oct 12, 2011): Both Bowoto and Kiobel have been redistributed for the Justices' conference this coming Friday Oct 14. It is possible we will know by the end of the day if they grant review.